Bolio v. Scholting
| Decision Date | 30 March 1950 |
| Docket Number | No. 32719,32719 |
| Citation | 152 Neb. 588,41 N.W.2d 913 |
| Parties | BOLIO v. SCHOLTING et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In determining the sufficiency of evidence to sustain a verdict it must be considered most favorably to the successful party, any controverted fact resolved in his favor, and he must have the benefit of inferences reasonably deducible from it.
2. The verdict of a jury, based on conflicting evidence, will not be disturbed unless clearly wrong.
3. Negligence or contributory negligence in an action for personal injuries, where the evidence in relation thereto is such that minds may reasonably reach different conclusions as to their existence, is a question of fact.
4. It was a question of fact whether or not it was negligence to park and leave unattended a truck in the manner and situation described in the opinion, and it was for the jury to determine whether or not it was contributory negligence for a person to go between a truck and building under the circumstances and at the time as stated therein.
5. The meaning of an instruction, not the phraseology, is the important consideration, and prejudice will not be found when the meaning thereof is reasonably clear.
6. Instructions should be considered as a whole, and if they fairly submit the case the verdict of the jury will not be set aside.
7. An assignment that evidence was on the trial erroneously admitted or rejected, to be considered on appeal, must specifically point out the evidence.
8. A prerequisite to review on appeal of alleged improper conduct of and statements by a trial judge, on the trial in the presence of the jury, is an objection and exception thereto.
J. J. Friedman, Omaha, for appellant.
Gross, Welch, Vinardi & Kauffman, Omaha, for appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
William Bolio, appellant, sued M. R. Scholting, doing business as Scholting Transfer Company, and Hugh Vargas, appellees, for damages claimed to have resulted from injuries to appellant when a truck owned by M. R. Scholting and parked by Hugh Vargas near an unloading pit of a grain elevator backed against appellant while he was passing between the rear end of the truck and the elevator building of Wertheimer & Company.
The contending parties are appellant and M. R. Scholting, owner of the truck, and his employee Hugh Vargas, appellees. Wertheimer & Company, appellee, owner and operator of the premises where the accident occurred and employer of appellant, was made a party to protect its rights of subrogation resulting from payments under the Workmen's Compensation Act to appellant.
The trial resulted in a verdict for appellees. Motion of appellant for a new trial was denied, and he has appealed.
The negligence charged is that Hugh Vargas, while performing duties of his employment by M. R. Scholting, parked the heavily loaded truck with the reverse gear engaged on a grade descending towards the elevator building, without applying or setting the brakes on the truck and without warning appellant of the facts or the potential danger. Appellant says that the evidence of negligence of appellees was conclusive and the court should have instructed for him on this issue and submitted to the jury for its determination only the amount of his damages. Appellees denied negligence and pleaded the proximate cause of any injury or damage to appellant was the result of his negligence. They contend there is no evidence of their negligence but that there is evidence of negligence more than slight on the part of appellant. In testing the sufficiency of evidence to support the verdict, it must be considered in the light most favorable to the successful party, any controverted fact must be resolved in his favor, and he must be given the advantage of any inferences that can reasonably be deduced therefrom. In re Estate of Hunter, 151 Neb. 704, 39 N.W.2d 418. It is not permissible for this court in reviewing the record in an action at law to resolve or weigh evidence. Clark v. State, 151 Neb. 348, 37 N.W.2d 601. It is presumed in an action at law that all controverted facts are resolved by the jury in favor of the successful party. The findings of a jury based on conflicting evidence in such a case will not be disturbed unless clearly wrong. Anderson v. Lotman, 124 Neb. 795, 248 N.W. 309.
There is evidence that appellant and Hugh Vargas had knowledge of the location and situation of the place of the accident. The former had lived and worked there for many years, and the latter had made deliveries there before and knew the situation. He was performing duties of his employment in accordance with the instructions of his employer, the owner of the truck, at the time of the accident. Hugh Vargas, appellee, was making delivery of a truckload of shelled corn to the elevator of Wertheimer & Company. The elevator building extended north and south. To the north of it was an office building and scales. South of the main building was a spur railroad track, and north of it and as a part of the building was a construction referred to as an unloading pit, chute, or hopper in which grain was unloaded and conducted into the elevator building and from there elevated by power machinery and equipment into one of the five bins of the elevator. Above and to the east of the unloading pit was a door in the side of the building. It was three or four feet from the right or east side of the doorway west to the east edge of the unloading pit. There were two doors in the doorway and they were open. The covering of the unloading pit had been removed and it was in condition to receive grain. There was an incline to the south from the south rail of the railroad track. The loaded truck was driven by appellee onto the scales and weighed by appellant. It then moved around the west end of the elevator and to the east and turned south until it was about opposite the unloading pit and then backed north until the rear wheels were probably on the south rail of the track. The truck was stopped, the motor turned off, it ceased to operate, and the clutch was engaged in reverse gear, but the brakes of the brakes of the truck were not put on or set to prevent it from moving. It was a ton and a half Chevrolet truck equipped with grain box about 3 feet deep, 12 feet long, and 8 feet wide, with a movable end gate in the middle of the rear which when removed made an opening about half the width of the box. It was opened by pulling it up or taking it out. It was not a dump truck. It was necessary to shovel the part of the grain that did not spill out by gravity. The truck was in good mechanical condition. Vargas stopped the truck and got out to ascertain that it was in position, when backed farther, to have the opening in the rear end over the pit to permit the corn to drop in it when the end gate was opened or removed. The rear end of the truck was stopped about five feet from the building and about a foot south of the south edge of the pit. When appellant came around the west of the building from the office the truck was standing still and appellee was out of the truck on the east of it. Appellant traveled along the south of the elevator building to the pit and took one step up on its rim. The truck without warning started back. He grabbed the back part of the truck in an attempt to get up on it, but could not do so, was pinned between the truck and the side of the elevator building, and was injured. Vargas got in the truck, put it in operation, moved it forward, and appellant fell to the ground. What caused the truck to move backwards is unknown. Appellant was going to the doorway in the south wall of the elevator building to turn the switch so that the elevator machinery and equipment would operate and elevate the grain that was about to be unloaded from the pit into one of the bins of the elevator. That was his only object. He had nothing to do with the operation of the truck or the removal of the corn from it into the pit. The effect of leaving or putting the truck in gear after it was stopped and the motor turned off was to act as a brake and to tend to keep it motionless. Appellee had parked the truck in the same position and condition previously and under similar circumstances and the truck had not moved as it did on this occasion. The top of the rails of the track south of the building was about an inch and a half higher than the surrounding surface. Appellant was not required to pass between the rear of the truck and the building. He could have reached the location to which he was going through the elevator building or by going around the front of the truck to the doorway.
The heavily loaded truck was parked with the front wheels on higher ground than the rear wheels. The rear wheels may have been on the top of a rail of the spur track which was above the surrounding surface. The reverse gear was engaged, the brakes were not applied, and no warning was given appellant of any hazard of the situation. The shortness of time between when the truck was stopped and when it moved backwards was significant. It is true...
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